Origin of the Rule in Baker v. Bolton
![handle is hein.journals/lqr32 and id is 441 raw text is: THE ORIGIN OF THE RULE IN BAKER v. BOLTON.'
N i8o8 Lord Ellenborough decided that 'in a civil court the
death of a human being could not be complained of as an
injury'. Though this was only a nii 8prius decision, and though
no authority was cited for it, it has been accepted as a correct
statement of the law by the Court of Appeal. It can now only be
reviewed by the House of Lords.2 In this paper I do not propose
to say anything about the policy of the rule. It seems to me that
all the relevant arguments upon this point are to be found in Lord
Bramwell's dissenting judgment in Osborn v. Gilletl,3 and in Sir
Frederick Pollock's remarks in his book on the law of Torts.4 I
propose to examine the origin and history of the rule. It has been
upheld in all the reported cases, not by reasoning based upon a
discussion of the question of its policy or impolicy, not by any
sufficient technical or historical reasons, but by the assertion that
it is a rule of the common law which must be followed. If a broad
legal principle, not manifestly just, is thus laid down as a rule of
the common law, we should expect that some sufficient reasons,
historical or technical or both, would, be adduced for it. But none
of the cases adduce any such reasons. The only suggestion of a
reason is that given by Gwynne J. in the Canadian case of Monaghan
v. Horn,5 and adopted by Sir Gorell Barnes P. in Clark v. London
General Omnibau Co.6 In his opinion there is a difference between
an action brought for loss of service when the servide has been
suspended by injury, and an action brought for loss of service when
the contract of service has been terminated by death. But for two
reasons that reason does not appear to be very conclusive. in the
first place the damage suffered may not always depend upon the
existence of a contract of service. In the second place the reasoning
would equally well apply when an injury, not resulting in death,
was so serious that the contract was terminated by impossibility of
performance. Can it be contended that in such a case a person
who has suffered damage by the loss of service has no action in
tort? This, then, can hardly be considered a satisfactory reason
for the rule. To discover its true reason, and to ascertain whether
1 (r8o8) I Camp. 493; 10 R. R. 734.
2 Clark v. London General Omnibus Co. [19o6] 2 K. B. 648 ; The Amerika [1914] P. 167;
of. Berry v. Humm [1915] i K. B. at pp. 630, 631L
3 (1873) L. R. 8 Exeh. at pp. 93-9. Law of Torts (ioth ed.), 67-8.
r 7 Canada Sup. Court Rep. 409. 0 [19o6] 2 K. B. at pp. 662-3.](ViewImageLocal?handle=hein.journals/lqr32&div=44&collection=&method=preview&ext=.png&size=3)
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Origin of the Rule in Baker v. Bolton
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